A Remedy for Congressional Exclusion from Contemporary International Agreement Making

Abstract

When Harold Koh, as Legal Advisor to the U.S. Department of State, recently gave an address on 21st-century international lawmaking, he spoke about using much more than treaties and executive agreements to achieve policy goals.1 He also gave several examples of "memorializing arrangements or understandings that we have on paper without creating binding legal agreements with all the consequences that entails."2 One example of a non-legally binding agreement, or "political commitment," is the Copenhagen Accord. The Accord secured commitments on emissions reductions from 141 countries around the world.3 Pursuant to the Accord, the United States voluntarily submitted its intention to reduce domestic greenhouse gas emissions by 17% in 2020.4 The executive branch, however, has not presented the Copenhagen Accord to the Senate because it believes that political commitments do not require advice and consent. Instead, the executive branch submitted a letter directly to the United Nations Framework Convention on Climate Change indicating that the United States "associates itself ' with the agreement.5